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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

“REPORTABLE”

CASE NO.: A1074/2004

In the appeal between:

RAYMOND BOOYSEN Appellant

And

THE STATE Respondent

APPEAL JUDGMENT DELIVERED ON 15 APRIL 2005

DLODLO, J

1. The Appellant who was charged and found guilty of theft and fraud appeals against the conviction. He had pleaded not guilty to both charges preferred against him. The state led evidence firstly of one Carl Bosman, a credit control officer in the employment of Stannic. He testified briefly that the Appellant concluded an Instalment Sale Agreement in respect of a Toyota Conquest with Stannic in terms of which the former purchased the Toyota Conquest from the latter. He further explained that the account maintained by the Appellant was never in arrears and that in fact the Appellant made payments in advance on this account. In his testimony it came to the attention of Stannic that the Toyota Conquest the latter had financed for the Appellant had allegedly been sold to a third party. The third party was one Barry de Waal. Mr. Bosman contacted Mr. de Waal and enquired about his possession of the Toyota Conquest. Mr. de Waal told Mr. Bosman that he had bought the Toyota Conquest for an amount of R17 500.00. Mr. Bosman then told Mr. de Waal that the Toyota Conquest still owed about R10 000.00 to Stannic. Mr. Bosman subsequently and telephonically contacted the Appellant about this matter. In Mr. Bosman’s own words:

“Well he asked me why was I phoning him and also asked me whether the Stannic account was in any form of arrears. I told him it was not and in actual fact at that stage the account in Mr. Booysen’s name was in credit. He then said that he would – I told him too, I explained the legality of the matter that once he sells the vehicle or any vehicle on finance that Stannic should be settled immediately and what he had done was not legal. He then replied saying that as long as he continues making payments on the account, there was nothing I or Stannic could do.”

2. In the meantime Stannic concluded a deal in terms of which Mr. de Waal paid the settlement figure on the Toyota Conquest and he was handed the Title Certificate in order to have the vehicle registered in his name as titleholder and owner. Subsequently Mr. Bosman was telephonically contacted by the Appellant who asked why he laid the charge and accused him of failure to do his “homework and investigation well” because the Appellant did not physically sell the vehicle to Mr. de Waal, but that he merely loaned it to him.

3. Mr. de Waal testified that he and the Appellant underwent an agreement in terms whereof the Toyota Conquest would be sold to him for an amount of R17 500.00. Mr. de Waal hastened to add in his testimony that “so van die begin af het ek en Mnr. Booysen die verstandhouding gehad en ek het geweet dat daar ‘n bedrag van + R10 000.00 uitstaande was op die motor.” He further states in his evidence “so ek was, ek was van die begin af bewus dat die motor onderhewig was aan ‘n kredietooreenkoms.” In his evidence he was promised that the Appellant would pay Stannic the settlement figure. When he discovered that Stannic was not settled, he contacted the Appellant who gave some explanation. In cross-examination by the Appellant, Mr. de Waal conceded that the Appellant lived in a flat at Grason Place in which place this Toyota Conquest was consistently broken into and that the Appellant asked him to rather keep the Toyota Conquest at Mr. de Waal’s place. He conceded further that he then approached the Appellant and asked him to consider selling the Toyota Conquest to him. He conceded that the Appellant’s reaction was that he still owed about R13 000.00 on the Toyota Conquest. He however disputed that the Appellant offered the Toyota Conquest for sale to him for an amount of R28 000.00.

4. The Appellant’s evidence is simply that he went to Mr. de Waal and enquired if he could keep the Toyota Conquest at Mr. de Waal’s place. This he did because the vehicle was broken into time and again. According to the Appellant, Mr. de Waal agreed and asked if the Appellant would be amenable to allowing him to use the vehicle whenever he went to work as well as in transporting his wife to work. The Appellant agreed to this. After the vehicle had been delivered to Mr. de Waal’s place on the aforementioned arrangements, Mr. de Waal approached the Appellant and asked him to consider selling the motor vehicle to him. The Appellant told Mr. de Waal then that he still owed Stannic + R13 000.00 on the Instalment Sale Agreement, but he would consider the proposal if Mr. de Waal paid R28 000.00. According to the Appellant Mr. de Waal agreed resulting in him making a part payment of R17 500.00. He would still pay R10 500.00 towards the end of February and the parties would enter into the written contract and the Appellant would settle the Stannic account. The Appellant maintained “dat ek dus geensins afstand gedoen het van die motor nie. Ek het nie die motor aan hom verkoop nie en dit is al.” the Appellant further told the Court that Mr. Bosman telephoned him and wanted to know if he had sold the motor vehicle but the Appellant told him that he in fact lent the motor vehicle to Mr. de Waal.

5. This is a classic case where two (2) conflicting versions, that of the State and that of the defence exist. This posed a serious challenge to the Court a quo. I say so because the Court then had an onerous obligation to fully investigate the defence story. See in this regard S v Munyai 1986(4) SA 712 (V) at 715G where the following useful elaboration appears: “…..even if the State case stood as a completely acceptable and unshaken edifice, a court must investigate the defence case with a view to discerning whether it is demonstrably false or inherently so improbable as to be rejected as false. There is no room for balancing the two (2) versions, i.e the state case as against the accused’ case and to act on preponderances. This is clear from the next case to which Mr. Bursey refers, namely S v Singh (supra), in which their Lordships held that in criminal cases where there is conflict between the evidence of the state witnesses and that of the accused, it would be quite impermissible to approach the case on the basis that, because the court is satisfied as to the reliability of the state witnesses, it therefore must reject the accused’ evidence…..the proper approach is such a case is for a court to apply its mind not only to the merits and the demerits of the state and the defence witnesses, but also to the probabilities of the case. It is only after applying its mind to such probabilities that the court would be justified in reaching a conclusion as to whether the guilt of the accused had been established beyond all reasonable doubt.”

6. Looking squarely into the version presented by the Appellant, the following crystallized itself into common cause facts:

   1. That he was the contract holder with regard to the Instalment Sale Agreement between himself and Stannic in respect of this Toyota Conquest.

   2. That where he parked at a flat in which he was accommodated the vehicle was at risk not only because it was now and again broken into, but that it could also obviously be stolen.

   3. That the Appellant who was obviously concerned with the safety of the Toyota Conquest approached a man to whom he was known since the early days of his youth, Mr. de Waal, and asked to be allowed to rather keep the Toyota Conquest at Mr. de Waal’s place which was more secured and thus safe.

   4. That Mr. de Waal accepted the arrangement and made a counter proposal, namely that the Appellant allowed him the use of the motor vehicle whilst in his possession.

   5. Needless to say that the Appellant gave in understandably because the Toyota Conquest was parked at Mr. de Waal’s place without any agreement as to the payment of storage fee.

   6. That subsequently Mr. de Waal came with the request to buy the vehicle which is kept at his place, the use of which he had been allowed.

   7. That the Appellant made it very clear to Mr. de Waal that the motor vehicle still owes a specified amount in terms of the Instalment Sale Agreement he had with Stannic.

   8. That the Appellant would consider positively to sell the vehicle but would settle the debt with Stannic.

7. The only dispute is for how much and when would the alleged sale be concluded between the Appellant and Mr. de Waal. The Appellant was not at all faulted on the aspect that he had lent the motor vehicle to Mr. de Waal. He told Mr. Bosman about this. He told the court about this. My understanding of the Appellant’s version is that he had no objection in principle to selling the Toyota Conquest to Mr. de Waal, but the difficulty he had was that it still owed an amount to Stannic. In his version as soon as Mr. de Waal would have paid an amount additional to the R17 500.00, the Appellant would settle Stannic and would then conclude a written agreement with Mr. de Waal in terms of which he would sell the Toyota Conquest to him. This portion of the Appellant’s case remained unshaken even after cross-examination.

8. The difficulty in this matter is that normally a sale is confirmed by delivery of an item. In casu Mr. de Waal was in possession of the Toyota Conquest for different reasons when he initiated discussions with an aim of buying this motor vehicle.

9. In my view Stannic acted prematurely in this matter. I agree that in terms of the Instalment Sale Agreement the Appellant was not supposed to part with the possession of the vehicle during the currency of the said agreement. We now know the Appellant parted with possession indeed in contravention of the said Agreement. Putting aside the reasons (which in my view were sound and compelling), parting with possession per se does not amount to theft of this motor vehicle. At the very least, it amounts to an actionable possible civil suit between the Appellant and Stannic. A civil suit based on the possible breach of contract.

(10)I do not intend to deal with the version of the state in any greater detail. It suffices to point out that Mr. Bosman obtained the story of the sale of the Toyota Conquest from Mr. de Waal. It remains extremely strange that when Mr. Bosman heard the rumour that the Toyota Conquest which was the subject matter in the Instalment Sale Agreement between the Appellant and Stannic has been given or sold to the third party, he went straight to the third party without first establishing the facts from the contract holder, the Appellant.

11. Mr. de Waal in my view was an opportunistic person to say the least. The Appellant asked him to accommodate the vehicle at his place for security purposes, he agreed and made a request to use the Appellant’s motor vehicle. I do not know if this use was some form of penalizing the Appellant for keeping his vehicle at Mr. de Waal’s place. If so, why didn’t Mr. de Waal rather fix an amount payable to him as storage fee? Having been granted the right to use the motor vehicle, Mr. de Waal went further and made a proposal to buy the vehicle from the Appellant. He was told that the vehicle was subject to a current Instalment Sale Agreement and it still owed a specified amount. We now know from the evidence in this matter that Mr. de Waal eventually succeeded in his endeavours to acquire ownership of this Toyota Conquest. With the help of Mr. Bosman he was allowed to pay the settlement figure in respect of this vehicle in an Instalment Sale Agreement between the Appellant and Stannic. This was done without the involvement of the Appellant. The question that constantly must come to the mind of a trier of fact is simply what and how much reliance must be put on the evidential material presented by Mr. de Waal particularly those aspects of his evidence that conflict with the defence version. In my view very little if any reliance need be placed on his version. As soon as he gathered that the Toyota Conquest had not yet been settled with Stannic, he moved swiftly to exploit the situation to his benefit. Of cause with the help of Mr. Bosman.

11. The appellant contended that he had not sold the vehicle to Mr. de Waal, he had loaned it to him. There is no doubt that the Appellant had given in Mr. de Waal’s persuasion to have the vehicle sold to him. But despite the part payment the Appellant made no bones about it that he would only conclude a written agreement to sell to Mr. de Waal as soon as he shall have sorted out Stannic i.e. payment of the settlement figure. There is no doubt that if the version of the Appellant were to be accepted, his actions would have been within the law. The onus resting on the state is such that “…..whether I subjectively disbelieve him, is however, not the test. I need not even reject the state case in order to acquit him if there exists a reasonable possibility that his evidence may be true”, those were the wise words of Slomowitz AJ in S v Kubheka 1982(1) SA 534(W). See further S v Jaffer 1988(2) SA 84(C)

11. The magistrate seems to have relied on S v Van Heerden 1984(1) SA 666 (AD) but that case is factually distinguishable from the instant case. It would be recalled that in the Van Heerden case the Appellant had sold or exchanged a tractor purchased on hire purchase. The exchange transaction was drawn up by an attorney but the financier had never been notified of the exchange transaction. The state thus had no difficulty in establishing sale or the exchange transactions. It is common cause that in the instant matter the state faced difficulty in proving the sale of the vehicle in view of the version of the Appellant most of which could not be disproved by credible evidence from an independent source. There was evidence from an independent source in Van Heerden’s case supra.

11. In addition to the leading questions the prosecution employed in order to secure evidence from the state witnesses, I am concerned about the manner the magistrate conducted this case. The Appellant was not legally represented. Despite that, strangely the most pertinent questions he put to the witnesses were invariably blocked by the trial magistrate. The result was the witnesses were never allowed to answer such questions which in my view, were of cardinal importance to the defence case. This brings all kinds of questions into play including but not limited to whether or not it can be said that the Appellant had a fair trial.

12. I am of the view that the state did not succeed to prove the guilt of the Appellant beyond reasonable doubt in respect of both counts. The version of the Appellant was not shown not to be reasonably possibly true. This conviction cannot stand.

11. In the result the conviction of the Appellant by the Court a quo is hereby set aside. In its place it is substituted that the “Accused is given the benefit of doubt and he is found not guilty and is discharged on both Theft and Fraud Counts.”

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DLODLO, J

I agree. ______________

GOSO, AJ

It is so ordered. _______________

DLODLO, J

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